' MUHAMMAD AYUB KHAN (MEMBER)---Facts of the case, as appear from the record, are that the appellant, Works Manager B-18, allegedly fell ill on the 1st of August, 1995 as a result of severe bronchitis attack and reportedly informed the Management by a telegram and two letters the same day when he could not report for duty and on the contrary sought medical aid from the nearest medical attendant available.
2. The appellant is serving under the administrative control of Respondent No,1, who is also his Authorised Officer, whereas Respondent No,2 was appointed as Enquiry Officer in this case. The appellant when failed to report for duty as well as get himself medically examined from the CMH, as directed, the Administration, it appears, invoked the Efficiency and Discipline Rules against him and as such was served with a show-cause notice, dated 7-1-1996 by the Authorised Officer with a direction to put in written defence to the Enquiry Officer within fourteen days and in case no reply was received within the stipulated period it would be presumed that he had no defence to offer and the charges levelled against him will be decided ex parte on the basis of available record/evidence. Statement of allegations was also annexed to the show-cause notice besides the charge-sheet. The appellant submitted his reply, dated 12-2-1996 wherein the allegations levelled against him were itemwise replied and denied.
3. Scrutiny of the file further reveals that the Enquiry Officer examined the appellant as well as rest of the concerned witnesses and, after completion of the enquiry proceedings, he prepared a report and laid before the Authorised Officer for appropriate orders. The latter was pleased to award a penalty of "censure" under the Government Servants (Efficiency and Discipline) Rules, 1973, vide order, dated 24-7-1996, effective from 3-6-1996, impugned and challenged by the present appeal.
The appellant still feeling aggrieved submitted a petition for view to the Authority as laid down under the Rules but it was withheld by the Defence Production Division having not been received within the stipulated period of thirty (30) days as required.
4. We have heard the appellant in person (having not engaged an Advocate) and Mr. M. Aslam Uns, learned counsel for the Respondent-Department, Mr. Ashgar Ali, Personnel Officer and Respondents Nos.(ii) to (iv) present were consulted as and when required.
5. The appellant outrightly at start of his arguments stated at the Bar that the Administration changed its attitude towards him as and when he filed an application for withdrawal of his resignation earlier tendered and thereafter the Administration intended to get rid of him. This aspect of the case will be discussed later on at the appropriate stage.
6. Perusal of sub-para. (ii) of para.2 (a) (on factual side) indicates that the appellant attended his office on 14-10-1995 (wrongly indicated 24-10-1995). The said sub-para. (ii) is reproduced below for the sake of facility:-- "(ii) DGM Sajjad Ahmed called the appellant in his office and took the appellant to HIT, Hospital Texila to Psychiatrist 'M. Azhar' and told him that 'Dear Azhar, I hand over this officer under your custody', in the meanwhile four soldiers alongwith one NCO entered the room alongwith guns and forcibly put the appellant in the ambulance and then put in Psychiatric Ward, MH, Rwp, at the closing hours, where the appellant kept in the Hospital for two months and seventeen days i,e, eighty days under severe stress and strain condition and ultimately the appellant was relieved from the MH, Rwp on 11th January, 1996 by issuing discharge slip with remarks 'Adjustment Reaction'
(Photocopy at at F/A) 'which is not a psycho disease, it is a natural phenomenon' ."
' He also put forward other grievances in para. (ii) to (v) of the appeal. Main objection which motivated the Administration to lay hand on the appellant is issuance of letter, dated 30-4-1995 (not available on file) and as such the itemwise charges and the parawise replies, furnished by the appellant, for convenience sake and proper comprehension are reproduced below in juxtaposition:-- {{TABLE}} ' ALLEGATIONS REPLIES TO THE ALLEGATIONS "(a) You submitted a request on (a) 30-4-1995 for withdrawal of resignation direct to Secretary
(DP) instead of through proper channel in violation of Rules and Standing instructions.(b) You levelled baseless (b) allegations against your senior officers and made personal remakrs against them in your application, dated 30th April, 1995.
It is clarified that I had submitted a request on 30-4-1995 for withdrawal of resignation under SL-19 of ESTACODE Page 396 through proper channel (Photocopy of mintsheet through which the request was made through proper channel attached as per Annexure A) and (Photocopy of AD (Coord) office on which the dealing person received my case file duly signed by the person at serial No,84 attached as per Annexure B) and Ad (Cord) had also acknowledged vide Letter No,2871/200 AD (Coord), dated 30th April, 1995 attached as per Annexure C) to recieve my application whereas a copy of the application for withdrawal of resignation was sent to Secretary (DP) Division in advance on 30-4-1995 for consideration of the said case. (Phocopy of receipt attached as Annexure CA): It is clarifired that I have not leveled any allegation against my seniors, it was a request which was communicated through my application, dated 30-4-1995 to higher authorities for obtaining approval for rewriting my ACRs for the years i,e, 1986, 1988, 1989, 1990 and 1994.
(In this connection Summary of the said ACRs can be seen at pages 15 to 17). #TBS You failed to report to Co, (c)
HIT Hospital for medical check-up after having been interviewed by the A/DG, HIT on 30th July, 1995. #TBE It is clarified that I had reported to Co, HIT Hospital for medical check-up after having been interviewed by A/DG, HIT on 30th July, 1995 where medical specialist Maj. Abdullah had checked me medically and declared medically fit. On August, 1st of 1995, I fell ill, I had a severe Bronchitis attack as the same happened in Aug. 1993 and August 1994 (photocopy of discharge slip attached as per Annexure L.M.) and regarding illness, I informed my employer on the same day (photocopy of telegram attached as per Annexure 'N') and later on after getting relieved from illness, I reported to Hospital on 24th October, 1995 for psychiatric assessment. #TBS You intentionally absented (d) yourself from duty as well as hospital from 1-8-1995 to 13-10- 1995. #TBE It is clarified that I had no intention to get absented myself from duties as well as from hospital, w,e,f, 1st August 1995 to 13th October, 1995, it happened only due to tension and allergey as I
(e) You failed to provide correct address on vacation of Government accommodation resulting in non-delivery of official letters addressed to you
(f) You posted two applications for medical leave i,e, from 1st August, 1995 to 30th September, 1995 and from 1st October, 1995 to 31st December, 1995 on medical grounds. You were referred to, HIT Hospital for proper medical check-up but you did not comply. mentioned earlier vide para. 'c' ante, but duration of sickness was longer as compared to previous years (photocopy of medical rest i,e, 1st August 1995 to 31 August 1995, 1st September 1995 to 30th September, 1995 and 1st October, 1995 to 13th October, 1995 (total days seventy four) duly signed by medical specialist is attached as per Annexure '0'.
(e) Residential address produced by the undersigned to employer was correct. I discussed the said matter with the owner of the house, who clarified that the address under discussion was correct and there is no any ambiguity, there may be a mistake of postman who could not trace out the address.
(0 During the period of my illness i.e medical rest w,e,f, 1st August 1995, to . 13th October 1995, I have not received any letter from my employer and in spite of conveying messages through telegram and applications regarding my illness, HIT had published my AWOL w,e,f, 6th August, 1995 (photocopy attached as per Annexure 'P'). It is astonishing to know that how it is possible that within four days HIT had despatched letters and received no reply
(g) You also made allegations against your seniors in your application, dated 2-9-1995 that you fell ill due to their poor treatment. (g) from the indls, whereas for obtaining approval from PD as well as DG, it normally takes 10-15 days. As such I was not absent and reason for illness was also conveyed to HIT through the said media's. (Photocopy attached as per Annexure 'P-1') for info. I apprehend that there must be someone on the back who is disturbing me and damaging my career. It is clarified that I have not levelled any allegation against my seniors, it was a request, which was brought to the notice of DO, HIT, Taxila, to apprise him the factual position as he was the concerned persons. It is further added that narrating a correct and factual position is not an allegations, I being an employee of HIT and a citizen of this country is entitled to put action under law against my illegal act and seek redress for my grievances. {{TABLE}} ' As far as my senior officers are concerned I have great respect for them, however, I fell ill due to tension and allergy. If any word had been used against my seniors, in the past, I am sorry for that."
7. Redressal of one's grievance by way of a petition/appeal couched in a polite and moderate language cannot be construed as 'misconduct' specially when without it the higher authority could possibly be not in a position to appreciate the facts in issue. It is a legal right having been afforded to all concerned by the law subject to maintenance of due discipline by use of polite and moderate language.
8. The "commando action" agitated at para. 2-a (ii) of the objections if really happened like that is not covered by any law or rule or morality being an actionable wrong and in total disregard of the principle "live and let other to live" which holds good in our daily private as well as official affairs.
The respondents have, however, denied the application of "commando action" against the appellant. However, the- Administration appears to have acted upon the advice of the Personnel Officer contained at the concluding para.4 of the letter, dated 30-7-1995 which admittedly resulted in financial plight of the appellant so much so that he could not meet the bare needs of daily life without financial aid of his friends and borrowing from Welfare Fund of the Organization due to non-settlement of the concerned case within a reasonable time. He is an officer in BPS-18 and if happens to be conscientious (not doubted) will never forget this treatment throughout his career which is likely to act as a good advice. One thing stands clear that he was either not an army deserter or a maniac and hence the application of the 'commondo action', if any was totally uncalled for.
9. A perusal of the document appearing at pages 15, 16 and 24 of the file and relating to the disposal of his previous ACRs depicts that these were not attended to promptly as required under the relevant instructions/guidance for disposal of ACRs,
10. Another important issue involved in this appeal is withholding of the appellant's review petition addressed to the Prime Minister of Pakistan against the decision/order impugned in the petition awarding thereunder the penalty of censure but the same was withheld having not been filed as required under rule 7(1)(c) of the Civil Servants (Appeals) Rules, 1977 and in this respect the appellant in his letter, dated 6-2-1997 reports that the impugned order, dated 24-7-1996 was communicated to him on 9th August, 1996 against which he moved a review petition at the earliest opportunity_on 8th September, 1996, with a report that 6th and 7th September, 1996, were closed holidays and when viewed from this angle the review petition having been filed within 30 days can/could not be treated as time-barred and in the absence of anything contrary on the' file we had to believe and accept the contention raised by the appellant. When once an appeal is filed within limitation the authority to which it has been presented has to forward to the appellate authority and any delay occurred in process of the appeal/review petition from the date of presentation onwards cannot be attributed to the appellant.
MATTER OF RESIGNATION.
11. This matter, a two way traffic, falls under Chapter I, relating to communication, acceptance and revocation of proposals and the relevant section 5 of the Contract Act, 1872, concerning it, is reproduced below for convenience sake:-- "(5) A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards. An acceptance may be . Revoked at any time before the communication of the acceptance is complete as against the acceptor but not afterwards."
12. The Establishment Division have also issued O.M. No,15-11/ 84-R-2, dated 28-5-1984 vide Serial No,19 and printed at page 396 of 1989 ESTACODE, on the subject of "Withdrawal of resignation by Government Servants". Para. 2 incorporates the following in consultation with the Ministry of Finance:-- "In case a Government Servant withdraws resignation before it is accepted by the comeptent authority, the resignation should be deemed to have been withdrawn."
' In the instant case, the appellant's resignation was withdrawn before its acceptance by the competent authority and as such it was perfectly in w accordance with law and any technicality with respect to its withdrawal whether directly sent or through proper channel has no relevancy when once it has been accepted by the competent authority and hence cannot be construed a source of annoyance whatsoever to any person.
13. Scrutiny of the appellant's past ACRs annexed to the objection filed by the respondents depicts him in some respects below the desired standard but keeping in view the nature of his qualification, the job he performed and some of his unresolved matters, such-like demonstration of conduct is but natural. He is Metallurgical Engineer and has worked for sufficient time in hot shops and just possible he might have devolved a somewhat different attitude and the disease of bronchitis/asthma. It is said, "there is no great genius without a mixture of madness". The contribution he made in presentation of his paper on a "TOPIC: MIC WELDING PROCESS ON ALUMINUM and participation in '1995 National Seminar on Metallogfaphy' hosted by Pakistan Atomic Energy Commission, Islamabad is not less importance as is evident from Annexure 'E' (pages 25 to 58 of the file), including recommendations by Col. Engineer S. Kausar Ali Shah, Deputy Project Director (A), Government of Pakistan, Defence Production Division, Heavy Rebuild Factories (P-881), Taxila Cantt. To Professor John Brown, Dean, Faculty of Technology, Brunel University, United Kingdom, the concluding para. Which is reproduced below for convenience sake, all indicate his contributions on the subject:-- "Mr. Sarfraz Zafar Bhatti is a dedicated and hard working Engineer who is capable of studying independently. He is good in computing and can communicate well. His academic qualification coupled with his practical experience would help him to peruse higher education in the discipline of welding engineering. I feel no hesitation in recommending his application for admission in M.Sc.
Welding .Engineering."
MEDICAL TREATMENT
14. The appellant was feeling some inconvenience and had been referred to HIT Hospital to a concerned expert, who after examination, advised him to attend on 30-7-1995 but instead of doing so he sought medical advice from another Specialist though in the employment of Government of Pakistan yet was not falling within the treatment, coming under M.H. Reportedly on a plea of a feeling severe bronchitis attack. We regretfully cannot afford to open a new front for the Administration specially when they are lawfully engaged on many important fronts, i,e, geographical and many other important fronts such as intellectuals, academic, scientific etc. For enabling them to avoid unconcerned matters. The appellant can be excused as a special case for:--
(i) Non-settlement of his personal problems within a reasonable period;
(ii) His remorso over deficiencies on his part when pointed out to him by the Enquiry Committee, by saying that he was sorry for that.
(iii) Acceptance of Administration's verdict 'ADJUSTMENT REACTION' (meaning thereby that he was not really ill) which the appellant readily admitted in his comments being a natural phenomenon.
In other words he is not a hopeless case.
14. The facilities available in CMH are more efficacious in line of the Administration, cheap and hence cannot be sacrified and replaced by such facilities outside the Organization/Administration.
The special treatment/law overrides a general treatment/law. The latter can be resorted to when the former lacks the available facility/law, as the case may be.
15. Every Government/Civil Servant is under obligation to work c diligently by demonstrating good conduct towards others and any deviation therefrom can possibly entail disciplinary action.
16. Love begets love whereas hatred generates ill-will and further fraught with numerous mala fides the main presently in vogue in our official and private affairs is sticking to one' s guns to the total disregard of others. This sort of tendency goes against the notion of fair play, peace and tranquillity in society. The statement and policy:-- {{URDU TXT}} "I stout, thou stout who will carry the dust out" leads us nowhere except mutual frictions unnecessary indulgence in affairs of others and generation of mutual hatred. How to get rid of this malady? There is a best solution for it under the principle of an Arabic maxim:-- {{ARABIC TEXT}} "For every illness there is medicine/cure except ignorance." Then what is the prescription for it? It is contained in the tradition of the Holy Prophet Muhammad (peace be upon him) who said:-- #TBS 411 #TBE #TBS 17. The other tradition of the Holy Prohpet, Muhammad, (peace be upon him) reads:-- #TBE #TBS Now let us see as to what is contained in the Holy Qur'an. (1) {{ARABIC TEXT}} '0' ye, who belive! Avoid practice on the basis of suspicion as some suspicion is sin." (2) #TBE #TBS {{ARABIC TEXT}}"I have given you two things. The Qur'an and the Sunnah, if you hold them fast, you will never go astray." #TBE #TBS .7 I, #TBE " I 47,31.2?11.
"The difference of opinion amongst my people is a blessing" (3) which is practiced daily in high Forums such as Intellectual, Education, Scientific etc., both National and Intcsnational and thereby most difficult situations and differences are ironed out and finally settled. There is no reason as to why we shall not settle our petty official differences as amicably without wasting our Valueable/precious time and money.
7. The appellant is supposed to adjust himself to policy of the Administration and the latter, in response may show its graceness towards its subordinate who is for inferior in status and grade.
The appellant, if fails to improve his conduct materially, then in that event he is likely not only to lose his service but simultaneously, it is feared, as a commitant. {{TABLE}} para.3, Pagel (Chapter-I) of The Evolution of Judicial Systems and Law in the Sub-Continent by Muhammad Ayub Khan, (Author of this judgment). para.Xviii, page 4 - do - para.7, Page 8 - do - {{TABLE}} ' result, he is also surely to be deprived from the fragrance of a tiny garden bagheecha' which lie is keeping in his house in the form of flowers Raheel, Shakeel, Shagufta baby and Jameela Bibi (fictitious names) for the obvious reason that within a month or so of his lodging for treatment in M.H. He was confronted with serious financial stringency by resorting to purchase edibles on credit from shopkeepers vide para.v of the appeals and further had to rely on financial aid extended to him by his friends and from Welfare Fund of the Administration. We could also develop negative approach but for this factor so that the tiny garden shall not wither away from no fault of the beautiful flowers therein installed.
19. Our 'direction '. Unity, Faith and Discipline most sublime, lofty and noble shall be meticulously adhered to and, in no case, an extraneous matter shall derail us from it. The "dream land" and an ideological "sacred land" still requires handsome sacrifices from all of us whether high or low and the best homage to be paid to the Founding Fathers can be to work with full devotion and dedication selflessly so as to have a fair name in the commity of Nations.
20. Pursuant to what has been stated above in the foregoing paragraphs we accept this appeal and set aside the impugned order in the ends of justice with no order as to costs.